158: And finally a look forward to what’s happening in employment news for April 2019

The Law Commission, the independent statutory body which reviews legislation, has issued a consultation on simplifying the Immigration Rules, which have grown from 40 pages in 1973 to around 1,100 pages today. Immigration practitioners, the Law Society and judges have often criticised the Rules for being too complex and badly-drafted. The consultation seeks views on the principles to apply when re-drafting and re-structuring the Rules; the timing and procedure for making amendments; how to link the Rules with guidance and practical examples; and the use of technology in the application process. Substantive immigration policy is not covered by the review. The consultation closes on 26 April 2019.

The Women and Work All-Party Parliamentary Group has published a new toolkit, ‘How to Recruit Women for the 21st Century’, which calls on employers to review and improve their recruitment processes in order to attract and employ more women. The toolkit contains many practical suggestions for employers, for example, routinely considering how roles can work in a part-time, job-sharing, flexible hours, or work from home arrangement; ensuring that job adverts do not contain gendered language; introducing name-blind and context-blind applications; avoiding asking applicants about current salary; and building a strong female talent pipeline. The toolkit also contains policy recommendations for Government, including broadening the apprenticeship levy into a skills and training levy to improve training opportunities for female contractors, freelancers and agency workers; strengthening the Equality Act 2010; and publishing new guidance on the effective use of positive action and other measures aimed at levelling the playing field for underrepresented groups.

The Home Office Right to Work Checking Service, launched in April 2018, enables employers to check migrants’ right to work and whether they are subject to any restrictions, in real time. This online service can be used by non-EEA nationals with biometric residence permits or cards, and EEA nationals who have been granted settled status under the EU Settlement Scheme. The service is voluntary, so migrants can use either the document checking service or the online checking service. Until recently, employers still had to request paper documents alongside the online service. However, since 28 January 2019, employers can use the online service to demonstrate that they have conducted the necessary right to work checks. Employers will avoid a civil penalty provided the online check confirms that the employee is allowed to perform the relevant work in the UK; the online photograph is of the employee; they retain a copy of the online check for at least two years after employment ends; and they retain details of the term and vacation dates for students. In addition, from 28 January 2019, UK nationals without British passports will be able to demonstrate their citizenship by means of a short-form birth or adoption certificate with a National Insurance number, instead of the long-form version.

The Equalities and Human Rights Commission (EHRC), which is responsible for monitoring and enforcing the gender pay gap reporting legislation, has confirmed in its recent report, ‘Closing the gender pay gap’, that all organisations subject to the reporting requirements published the relevant data by 1 August 2018. Although not legally required, the report encourages all employers to publish a narrative report with their gender pay gap data, explaining the reasons for any gaps and setting out a target-driven action plan. So far, around 20% of employers have produced an action plan, and only 11% have set targets that would enable them to measure progress year-on-year. The EHRC believes that including narrative reports will help attract and retain employees, enhance reputation and brand image with customers, shareholders and other stakeholders, and enable meaningful employee engagement on gender pay gap issues. The EHRC’s report also suggests measures which employers can take to improve their gender pay gap in various areas, including recruitment and development, flexible working, parental leave, bonuses, and performance-related pay.

On 17 January 2019, the House of Commons Business, Energy and Industrial Strategy Committee published the Government’s response to the Committee’s August 2018 report on strengthening the gender pay gap reporting regime. The Government has rejected all of the Committee’s key recommendations. It does not agree that the gender pay gap reporting requirements should be aligned with other business reporting requirements, and does not propose to require employers to produce a narrative report and action plan. In addition, although the Government wishes to encourage smaller firms to look at their gender pay gaps, it does not propose to lower the qualifying threshold to organisations of 50 employees or more. The response also confirms that the regulations will not be amended to change the requirement for information on salary quartiles to deciles, or to require both part-time and full-time gender pay gap statistics. Although the Government has rejected the Committee’s recommendations for change, it has indicated that it will amend the regulations as and when this proves necessary, after a process of consultation with all relevant stakeholders.

The Department for Business, Energy and Industrial Strategy has published guidance on the new requirements to provide all workers with a payslip and to show additional information on payslips where pay varies depending on the number of hours worked (Employment Rights Act (Itemised Pay Statement) (Amendment) (No.2) Order 2018). These new rights will apply to payslips covering pay periods which begin on or after 6 April 2019. The guidance includes details of the information which must be provided and how the rights will be enforced as well as case studies for various types of workers. Where pay varies by time worked, the amount of time worked must be shown, either as a single total or broken down into different types of work or pay rates. A worker who has not received a payslip, or whose payslip lacks the required information, may bring a claim in the Employment Tribunal. The Tribunal must make a declaration and may also order repayment of unnotified deductions made in the 13 weeks preceding presentation of the claim, even where the employer was entitled to make the deductions.

In line with its response to the Taylor Review, and issues raised by the Women and Equalities Select Committee, the Government has published a consultation on extending redundancy protection for pregnant women and new parents. This recommends extending the current protection for new mothers from the date on which they notify their employer in writing of their pregnancy until six months after their return from maternity leave. The consultation seeks views on how best to achieve this and whether protection should be extended to other groups such as those on adoption leave or shared parental leave. It also invites comments on how to increase awareness of employers’ rights and obligations, and how to tackle pregnancy discrimination in general. The consultation closes on 5 April 2019.

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